Unmasking the Ghost: Rectifying Ghostwriting and Limited-Scope Representation with the Ethical and Procedural Rules

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Nebraska Law Review, Vol: 92, Issue: 3, Page: 7

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Ostergard, Halley Acklie
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Pro se litigants—parties representing themselves without assistance of counsel—have steadily been on the increase since the late 1990s. According to the Administrative Office of the United States, the number of civil pro se cases filed in U.S. district courts in fiscal year 2010 was 24,319, increased from 20,545 in fiscal year 2007. One of the primary factors fueling the rise in pro se litigants is the prohibitive cost of full-service legal representation. Unable to afford lawyers, these individuals face the choice of allowing their claims to lapse or representing themselves. The increased number of parties representing themselves has resulted in a number of challenges for the judiciary and the legal profession at large. In order to help pro se litigants, courts have adopted rules giving leniency to individuals representing themselves. Meanwhile, lawyers adverse to pro se litigants experience added challenges when their opponents are unfamiliar with legal rules and procedures. Perhaps the greatest challenges resulting from the growth of pro se litigants have been the ethical and procedural concerns surrounding the practice of ghostwriting. Ghostwriting occurs when an attorney enters into limited representation for the sole purpose of anonymously drafting “particular pleadings or other court documents” for “clients who go on to represent themselves in court pro se.” While ghostwriting holds the potential to increase access to legal representation for low-income litigants, federal courts have almost universally condemned ghostwriting as a breach of an attorney’s ethical and professional duties. However, the Second Circuit’s recent decision in In re Liu rejected the notion that ghostwriting constituted sanctionable misconduct. The development of this circuit spilt on the issue of ghostwriting, as well as evolving trends in ethics opinions and professional rules of responsibility, presents a timely opportunity to revisit the ethical and procedural concerns surrounding ghostwriting. This Note will examine the ethical and procedural concerns surrounding ghostwriting, as well as the justifications supporting its practice, in an effort to determine how courts should address ghostwriting. Part II will present the background of ghostwriting and the concerns raised by its practice. First, this Note will give a brief explanation of ghostwriting and its relation to the larger movement of unbundled legal services. Next, this Note will outline the current circuit court precedents on the issue of ghostwriting, focusing specifically on the ethical and procedural concerns raised by the practice. Part III will examine the shortcomings of both the majority stance against ghostwriting and the minority posture that ghostwriting is not at odds with ethical and procedural rules. This Note concludes that both the majority and minority positions on ghostwriting are flawed and that reform is necessary to resolve the discrepancies between ghostwriting as a part of limited-scope representation and the ethical and procedural obligations to which lawyers are bound. Ultimately, this Note proposes a solution that supports the best interests of the courts, lawyers, and pro se litigants by remedying the flaws of the majority and minority stances, as well as eliminating the current contradictions about ghostwriting caused by procedural and ethical rules.